“I have been farming at home with my parents since I left agricultural college over 10 years ago.
My brother helps out on the farm too as well as farming other land he leases. My parents will not discuss handing over the farm and so I do not know if it is coming to me or my brother or both of us.
I have plans to build a new parlour on the home farm with grants under TAMS. However, I am getting increasingly concerned about spending all this money in the hope that I will one day inherit the farm.
Have you any advice?”
Contents of the will
This can be a common occurrence in a family farm situation.
You should establish beyond doubt that your parents have actually drawn up valid and subsisting wills and try to ascertain what is provided in those wills.
Unfortunately, you are not legally entitled to see a copy of their wills at this stage, but given the commitment you have made to the farm over the last number of years, it is a reasonable request that you be shown a copy of their wills.
The danger of your parents not having made valid wills is that should one of your parents die, the farm will be divided in accordance with the rules of intestacy, ie the surviving spouse would be entitled to two-thirds of the estate while the other one-third would be divided up among all of the children, ie you and your brothers and sisters (if any). If there is no surviving spouse, the entire estate would be left to all children in equal shares.
Restrictions where a will is made
The law imposes certain restrictions on how a person may deal with their estate. A spouse is entitled to one-third of the other spouse’s estate if they have children, known as the legal right share.
A surviving spouse also has a right to require that the family home and household contents be included in his/her share (and the share of children under the age of 18).
However, the spouse can renounce their right to the legal right share.
Children are not automatically entitled to any part of a parent’s estate but they may apply to court under Section 117 of the Succession Act, if they feel that a parent has failed in their moral duty to make proper provision for them in accordance with a parent’s means.
The onus is on the child to prove to the court that the parent failed in their moral duty to make adequate provision for them and the following factors are relevant in making that determination:
Value of the estate and the amount received by the surviving spouse.How the son/daughter challenging the will benefited from the deceased during his/her lifetime.Current financial circumstances and prospects of son/daughter challenging the will.How other siblings benefited from the deceased during his/her lifetime.Current financial circumstances and prospects of other siblings.Financial means of person who is deceased.However, a child is not entitled to make a claim under Section 117 where the parent died without having made a will.
Reform of Section 117
The Law Reform Commission (LRC) recently published a report in which it recommends that the law under which a child can claim that a parent did not make proper provision for them in a will, should be reformed, in particular as it applies to adult children. The report provides that for an adult child, it is appropriate to presume that a parent has already properly provided for them subject to specific exceptions:
where the adult child has a particular financial need arising from their health or decision-making capacity.where the estate contains an item of particular sentimental value to the adult child; orwhere the adult child had provided care and support for the deceased.Consequently, these exceptions could apply to family farm situations. The report also recommends that Section 117 should be extended to intestacy but until the draft Succession (Amendment) Bill prepared by the LRC to effect those changes is passed into law, the law remains as is without reference to the fact that a parent is presumed to have already provided for an adult child.
Promissory estoppel
An alternative cause of action you may have in the event that you do not inherit the farm is a claim for promissory estoppel. In order to succeed in such a claim, you would have to be able to prove the following:
That you had been given a promise or expectation that the farm would be yours on your parents’ death.It was reasonable for you to act on that promise and you did so over an extended period.You suffered detriment on the faith of that promise both in terms of your labour and expenditure.Promissory estoppel cases turn on oral evidence and in particular on your credibility in giving evidence. It will not be possible to predict the outcome with certainty and there is the question of costs if the claim does not succeed. Any such claim must be brought within two years of the date of death and if the claim is successful the executors will be deemed to hold the farm on trust for you and it will not form part of the estate. Consequently, it should not be affected by a parents claim for their legal right share.Conflict
Obviously it is in everyone’s interest to ensure that conflict would not arise in relation to either of your parents’ wills and accordingly you should impress on them the importance of ensuring that the wills leave assets as they intended to leave them.
Read more
Farm tax - putting the power in your hands
€25,000 tax credit available for farm transfers
Farm at risk from the Fair Deal Scheme
“I have been farming at home with my parents since I left agricultural college over 10 years ago.
My brother helps out on the farm too as well as farming other land he leases. My parents will not discuss handing over the farm and so I do not know if it is coming to me or my brother or both of us.
I have plans to build a new parlour on the home farm with grants under TAMS. However, I am getting increasingly concerned about spending all this money in the hope that I will one day inherit the farm.
Have you any advice?”
Contents of the will
This can be a common occurrence in a family farm situation.
You should establish beyond doubt that your parents have actually drawn up valid and subsisting wills and try to ascertain what is provided in those wills.
Unfortunately, you are not legally entitled to see a copy of their wills at this stage, but given the commitment you have made to the farm over the last number of years, it is a reasonable request that you be shown a copy of their wills.
The danger of your parents not having made valid wills is that should one of your parents die, the farm will be divided in accordance with the rules of intestacy, ie the surviving spouse would be entitled to two-thirds of the estate while the other one-third would be divided up among all of the children, ie you and your brothers and sisters (if any). If there is no surviving spouse, the entire estate would be left to all children in equal shares.
Restrictions where a will is made
The law imposes certain restrictions on how a person may deal with their estate. A spouse is entitled to one-third of the other spouse’s estate if they have children, known as the legal right share.
A surviving spouse also has a right to require that the family home and household contents be included in his/her share (and the share of children under the age of 18).
However, the spouse can renounce their right to the legal right share.
Children are not automatically entitled to any part of a parent’s estate but they may apply to court under Section 117 of the Succession Act, if they feel that a parent has failed in their moral duty to make proper provision for them in accordance with a parent’s means.
The onus is on the child to prove to the court that the parent failed in their moral duty to make adequate provision for them and the following factors are relevant in making that determination:
Value of the estate and the amount received by the surviving spouse.How the son/daughter challenging the will benefited from the deceased during his/her lifetime.Current financial circumstances and prospects of son/daughter challenging the will.How other siblings benefited from the deceased during his/her lifetime.Current financial circumstances and prospects of other siblings.Financial means of person who is deceased.However, a child is not entitled to make a claim under Section 117 where the parent died without having made a will.
Reform of Section 117
The Law Reform Commission (LRC) recently published a report in which it recommends that the law under which a child can claim that a parent did not make proper provision for them in a will, should be reformed, in particular as it applies to adult children. The report provides that for an adult child, it is appropriate to presume that a parent has already properly provided for them subject to specific exceptions:
where the adult child has a particular financial need arising from their health or decision-making capacity.where the estate contains an item of particular sentimental value to the adult child; orwhere the adult child had provided care and support for the deceased.Consequently, these exceptions could apply to family farm situations. The report also recommends that Section 117 should be extended to intestacy but until the draft Succession (Amendment) Bill prepared by the LRC to effect those changes is passed into law, the law remains as is without reference to the fact that a parent is presumed to have already provided for an adult child.
Promissory estoppel
An alternative cause of action you may have in the event that you do not inherit the farm is a claim for promissory estoppel. In order to succeed in such a claim, you would have to be able to prove the following:
That you had been given a promise or expectation that the farm would be yours on your parents’ death.It was reasonable for you to act on that promise and you did so over an extended period.You suffered detriment on the faith of that promise both in terms of your labour and expenditure.Promissory estoppel cases turn on oral evidence and in particular on your credibility in giving evidence. It will not be possible to predict the outcome with certainty and there is the question of costs if the claim does not succeed. Any such claim must be brought within two years of the date of death and if the claim is successful the executors will be deemed to hold the farm on trust for you and it will not form part of the estate. Consequently, it should not be affected by a parents claim for their legal right share.Conflict
Obviously it is in everyone’s interest to ensure that conflict would not arise in relation to either of your parents’ wills and accordingly you should impress on them the importance of ensuring that the wills leave assets as they intended to leave them.
Read more
Farm tax - putting the power in your hands
€25,000 tax credit available for farm transfers
Farm at risk from the Fair Deal Scheme
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